Karnataka High Court
Ramakanth Revankar vs Yeshvanth Revankar on 2 July, 2024
Author: Krishna S Dixit
Bench: Krishna S Dixit
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RFA No. 177 of 2005
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE KRISHNA S DIXIT
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 177 OF 2005 (PAR)
BETWEEN:
RAMAKANTH REVANKAR
S/O LATE TUKARAM REVANKAR
AGED ABOUT 41 YEARS
R/AT NO.143/144
SAMPIGE ROAD, MALLESWARAM
BANGALORE - 560 003
(SINCE DEAD BY HIS LRs)
(A) SMT. GAYATHRI. R
W/O LATE RAMAKANTH REVANKAR
AGED ABOUT 59 YEARS
R/AT NO.143/144
BETWEEN 8TH AND 9TH CROSS
SAMPIGE ROAD, MALLESWARAM
BENGALURU - 560 003
Digitally signed
by SHAKAMBARI (B) DR. ROSHINI R. REVANKAR
Location: HIGH W/O DR. SRIKANTH
COURT OF D/O LATE RAMAKANTH REVANKAR
KARNATAKA AGED ABOUT 32 YEARS
R/AT FLAT NO.103, SITE NO.55
RENAISSANCE AURA APARTMENT
IN BETWEEN SADASHIVANAGAR
AND VYALIKAVAL MAIN ROAD
BENGALURU-560 003
...APPELLANTS
(BY SRI. VIGNESHWAR S. SHASTRI SENIOR COUNSEL A/W
SRI. K.A. PRAKASH, ADVOCATE [PH])
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RFA No. 177 of 2005
AND:
1. YESHVANTH REVANKAR
S/O LATE TUKARAM REVANKAR
AGED ABOUT 41 YEARS
R/AT NO.143, SAMPIGE ROAD
MALLESWARAM
BANGALORE - 560 003
SINCE DEAD BY HIS LRs.
1(A) SMT. CHITHRA BAI
W/O LATE YESHVANTH T. REVANKAR
AGED ABOUT 58 YEARS
(SINCE DEAD LRs ARE ALREADY ON RECORD)
1(B) SRI. SUNIL Y. REVANKAR
S/O LATE YESHVANTH T. REVANKAR
AGED ABOUT 36 YEARS
1(C) SMT. SUREKHA
D/O LATE YESHVANTH T. REVANKAR
AGED ABOUT 32 YEARS
1(D) SMT. NUTHAN
D/O LATE YESHVANTH T. REVANKAR
AGED ABOUT 28 YEARS
ALL ARE R/AT NO.143
SAMPIGE ROAD
MALLESWARAM
BANGALORE - 560 003
2. SMT. SHANTHABAI K. ANVEKAR
W/O MR. KASHINATH ANVEKAR
SINCE DECD BY HER LRs
2(A) MR. KASHINATH ANVEKAR
AGED ABOUT 77 YEARS
2(B) MR. DINESH ANVEKAR
S/O MR. KASHINATH ANVEKAR
AGED ABOUT 48 YEARS
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RFA No. 177 of 2005
2(C) MRS. RAMABAI ANVEKAR
D/O MR. KASHINATH ANVEKAR
W/O SRI. MEGHASHAM SHIRODKAR
AGED ABOUT 50 YEARS
ALL ARE R/AT NO.16
SHANTHA NIVAS
P & T COLONY, R.T. NAGAR
BANGALORE - 560 032
3. SMT. MUKTA BAI N. JANNU
W/O. MR. N.R. JANNU
AGED ABOUT 67 YEARS
R/AT NO.8, BELLARY ROAD
BESIDES VIJAYA BANK
GANGENAHALLI
BANGALORE - 560 006
4. SMT. LEELA T. POUSKAR
W/O MR. THULASIDAS POUSKAR
AGED ABOUT 55 YEARS
LECTURER IN CHEMISTRY
MAHARANI'S COLLEGE OF ARTS
& SCIENCE, SESHADRI ROAD
BANGALORE - 560 001
5. SMT. T. LAKSHMI BAI
W/O MR. ANIL D. WORNKAR
AGED ABOUT 50 YEARS
R/AT NO.92, EAST MANGALAVARPET
MAHALSA SADAN
SOLAPUR - 413 002
(SINCE DEAD)
6. SMT. UMA C. RAIKAR
W/O MR. C. RAIKAR
AGED ABOUT 48 YEARS
R/AT NO. CTS 121/122, 23
RAJESHWARA KRUPA
SUBASH MARKET
HINDAWADI
BELGAUM - 590 010
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RFA No. 177 of 2005
7. SMT. SAVITHRI BAI S. VERNEKAR
W/O MR. SURESH VERNEKAR
AGED ABOUT 51 YEARS
R/AT MAHALSA PRASAD
HINDAWADI
BELGAUM - 590 010
(SINCE DEAD)
8. SMT. SRIMATHI BAI
W/O MR. SEETHARAM
AGED ABOUT 53 YEARS
R/AT NO.339, GBG QUARTERS
14TH CROSS, MARATHAHALLI, HAL
BANGALORE - 560 037
(SINCE DEAD)
...RESPONDENTS
(BY SRI. JAYAKUMAR S. PATIL, SENIOR COUNSEL A/W
SRI. NAGENDRA KUMAR K., ADVOCATE FOR R1[A TO D];
VIDE ORDER DTD.12.09.2023 & 15.09.2023 R1[A] IS
DEAD AND R1- [B TO D] ARE THE LRs;
R3 & R6 ARE SERVED AND UNREPRESENTED;
VIDE ORDER DTD.23.03.2018 - APPEAL IS ABATED
AGAINST R7;
VIDE ORDER DTD.29.01.2018 ON IA.4/16 AND IA.5/16
APPEAL IS DISMISSED AGAINST UNSERVED R2 [A TO C],
R4, R5 & R8;
VIDE ORDER DTD.15.09.2023 - APPEAL AS AGAINST
LRs OF R5, R7 & R8 ARE ABATED)
THIS RFA IS FILED U/SEC 96 CPC AGAINST THE JUDGMENT
AND DECREE DATED: 1.1.2005 PASSED IN OS.NO. 4341/1987 ON
THE FILE OF THE I ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY (CCH.NO.2), PARTLY DECREEING THE SUIT
FILED BY THE RESPONDENT NO.1 HEREIN BY ENTITLING HIM FOR
1/10TH SHARE IN ALL THE PLAINT SCHEDULE PROPERTIES AND
THE APPELLANT HEREIN PRAYS TO SET ASIDE THE ABOVE
JUDGMENT AND DECREE IN RESPECT OF ITEMS NO. 1 TO 3 OF
THE SUIT SCHEDULE PROPERTY BY HOLDING ITEMS NO.1 TO 3
ARE NOT PARTIBLE ESTATE PROPERTIES, BEQUEATED TO THE
APPELLANT BY MEANS OF A REGISTERD WILL AND HE IS ALONE
ENTITLED TO THE ITEM NOS. 1 TO 3 OF THE PLAINT SCHEDULE
PROPERTY.
THIS RFA COMING ON FOR FINAL HEARING THIS DAY,
KRISHNA S DIXIT J., DELIVERED THE FOLLOWING:
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RFA No. 177 of 2005
JUDGMENT
This appeal by the second defendant seeks to call in
question the judgment and decree dated 01.01.2005
whereby respondent plaintiff suit in OS No.4341/1987
having been tried and decreed, property is directed to be
partitioned allotting 1/10th share to each of the 10 sharers.
2. SUBMISSION MADE ON BEHALF OF PARTIES:
(a) Learned Senior Advocate Mr. Vighneshwara
Shastry, appearing for the appellant vehemently argues
that there was a registered Will dated 03.06.1987
executed by the first defendant father who passed away
on 09.02.1988; the appellant had filed Written Statement
on 11.08.1988 & Addl. Written Statement on 13.01.1997
specifically pressing into service the bequest. However,
since the second defendant then not being well, could not
prosecute the defence or his claim in the suit; the court
below vide order dated 07.08.2004 had wrongly rejected
the request for reopening the stage of evidence to lead
evidence to prove the Will; an opportunity ought to be
given to the widow of deceased defendant/appellant to
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build up the case of bequest by leading evidence. The
request made for that having been wrongly rejected, this
Court has to remand the matter for giving one more
opportunity.
(b) Mr.Shastry, also argues that there is a
presumption as to the existence of Joint Family amongst
hindus and therefore the same may be extended to such a
family owning the property jointly, regardless of what
evidence has been placed to prove the nature of property.
In any event, Section 8 of the Hindu Succession Act, 1956
could not have been invoked in the matter to allot 1/10th
share to the parties.
(c) Learned Sr. Advocate Mr.Jaykumar Patil
appearing for the LRs of deceased Respondent No.1 per
contra contended that Issue No.1 as to the property being
Joint Family property has not been proved and therefore
the same becomes separate property of the father; he
having died Sec.8 of the 1956 Act is rightly invoked
granting equal shares to 10 sharers; Trial Court's order
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dated 07.08.2004 which rejected appellant's request for
reopening the stage of evidence in the suit was rightly
upheld in W.P.NO.33813/2004 and the same has been
affirmed in W.A.No.4373/2004; therefore a Co-ordinate
Bench is bound by the same since the res judicata applies
to the successive stages of same proceeding. So
contending he seeks dismissal of the appeal.
3. Having heard the learned counsel for the parties
and having perused the appeal papers and the copies of
TCR, we decline indulgence in the matter broadly agreeing
with the submission made by learned Sr. Advocate
Mr.Jaykumar Patil on behalf of contesting respondents.
Firstly, no evidence worth mentioning is placed on record
to answer Issue No.1 in the affirmative to the effect that
the suit properties are Joint Family properties. The
presumption of Joint Family obtaining amongst hindus
does not extend to such a family owning the property in
joint. Secondly, Issue No.8 as to validity of the Will
dated 03.06.1987 was specifically framed; however, the
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appellant-defendant did not bother to lead any evidence to
vouch his claim for bequest. A Will whether registered or
not does not have the presumptive value; when its validity
is put in challenge, the same needs to be established by
cogent evidence, since it diverts the course of succession
which the statute law governs.
4. The next contention of Mr.Shastry that the court
below erred in making the order dated 07.08.2004
rejecting I.A. filed under Order IX Rule 7 of CPC for setting
aside placing the appellant ex parte. This order having
been put in challenge in W.P.No.33813/2004, a learned
Single Judge on merits negatived it vide order dated
13.09.2004. This has been affirmed by the Co-ordinate
Bench in W.A.No.4373/2004 disposed off on 27.10.2004.
These orders res judicate the contention of Mr.Shastry.
His reliance on Apex Court decision in SMT.SUKHRANI
VS. HARISHANKAR 1979 (2) SC 463 para 6, does not
much come to aid of the appellant inasmuch as the liberty
that is otherwise available in terms of Order XLIII Rule 1A
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of 1976 Amendment to CPC was not retained by the
appellant because of aforesaid writ petition & writ appeal
that went against him. The decision cited involved fact
matrix anterior to said amendment. Lord Halsbury in
QUINN vs. LEATHEM Quinn v Leathem (1901) A.C.
495, 506: has observed as under:
"Now before discussing the case of Allen v.
Flood, (1898) A.C. 1 and what was decided
therein, there are two observations of a
general character which I wish to make, and
one is to repeat what I have very often said
before, that every judgment must be read as
applicable to the particular facts proved, or
assumed to be proved, since the generality
of the expressions which may be found there
are not intended to be expositions of the
whole law, but governed and qualified by the
particular facts of the case in which such
expressions are to be found. The other is
that a case is only an authority for what it
actually decides. I entirely deny that it can
be quoted for a proposition that may seem
to follow logically from it. Such a mode of
reasoning assumes that the law is
necessarily a logical Code, whereas every
lawyer must acknowledge that the law is not
always logical at all."
5. Mr. Shastry contends that the first defendant
having died pendente suit, the view of the learned trial
Judge that Section 8 of the 1956 Act becomes invokable,
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cannot be sustained. This is bit difficult to countenance
inasmuch as the Issue No.1 about Joint Family property
has been negatively answered by the learned Judge of the
court below, in our opinion rightly. If Will of the 1st
Defendant is not proved, Sec.8 becomes a fortiari
applicable to the case and all the sharers regardless of
their gender take the property. Much discussion in this
regard is not warranted.
6. It has been the consistent view of the Apex
Court that, Court shall not remand an appeal for
consideration of the matter afresh only for giving one more
opportunity to the parties to make their case better than
before, subject to all just exceptions into which, argued
case of the appellant does not fit. Abundant opportunity
was available to the appellant-defendant who did not avail
it at the right stage of the suit proceeding. Refusal to
avail bars the complaint of violation of principles of natural
justice.
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In the above circumstances, this Appeal fails, costs
having been made easy.
Sd/-
JUDGE
Sd/-
JUDGE
Sk/-
